Articles

Welcomeness as a Defense in Sexual Harassment Cases -
Strict Liability for Minors

In defending sexual harassment cases, employers often will assert several substantive defenses. The employer may contend that the conduct alleged by the Plaintiff is not actionable as it does not rise to the level of sexual harassment on an objective or subjective basis, that the acts were not severe or pervasive, or the Defendant may argue that the Plaintiff welcomed the conduct of the alleged harasser. In the latter situation, if the district court rules on a motion for summary judgment, or the jury concludes that the Plaintiff welcomed the harasser’s advances, judgment will be entered for the employer.¹ When asserted as an affirmative defense, Plaintiff’s counsel often was left in the untenable position of having to defend her client when the employer accused the Plaintiff of engaging in sexual banter or other sexually suggestive behavior.

In Doe v. Oberweis Dairy,² the Seventh Circuit Court of Appeals reversed a ruling by the district court granting summary judgment to the employer in a sexual harassment case involving a minor Plaintiff. This article reviews the Doe case, and discusses how the defense of welcomeness is affected when litigating sexual harassment claims involving minor Plaintiffs.

Substantive Defenses In Sexual Harassment Litigation

In defending a sexual harassment claim, an employer may defend the case on a substantive level in one of two different ways. The employer may argue that the conduct alleged by the Plaintiff does not rise to the level of sexual harassment either on an objective level and/or subjective level. In order to establish her claim, the Plaintiff must both prove that the complained of conduct was offensive to a reasonable person, and that it offended her as well. If Plaintiff does not meet both prongs, the district court will grant the employer summary judgment if such a motion is filed, or at the time of trial the jury should find in favor of the employer.
Alternatively, the Defendant may contend that the Plaintiff welcomed the harasser’s conduct.

The Illinois Criminal Code Regarding Sexual Offenses

Illinois has criminalized four types of sexual offenses: criminal sexual abuse,³ aggravated sexual abuse,⁴ criminal sexual assault,⁵ and aggravated criminal sexual assault.⁶ While the statutes and sentences differ depending upon the ages of the offender, victim, and the type of conduct involved, all four statutes provide criminal sanctions where no force is involved, but the victim is a minor. Commonly referred to as “statutory rape,” a Defendant may be convicted of misdemeanor criminal sexual abuse if he has consensual sexual intercourse with a victim who is 16 years and 364 days old, and the Defendant is 17 or older.⁷

The Doe Facts and the District Court Opinion

Plaintiff Doe was a high school student who was hired at Oberweis Dairy as a part-time ice cream scooper in Bartlett, Illinois. Plaintiff worked with her shift supervisor at the store, Matt Nayman, between December 2001 and August 2002. Initially, Nayman squeezed Plaintiff’s arm above the elbow five or six times and asked her how she was doing. Nayman also began hugging her on the job. In February or March, 2002, Nayman told Plaintiff that she was pretty and that he did not understand why Doe did not have a boyfriend. Beginning in May, 2002, Plaintiff began visiting Nayman at his apartment. On one occasion when Plaintiff and Nayman were in his apartment, they engaged in a sexual encounter. Prior to their encounter, Plaintiff requested that Nayman put on a condom. Doe claimed that Nayman had harassed her sexually, culminating in sexual intercourse. Nayman was prosecuted, convicted of criminal sexual abuse and imprisoned. Doe was legally under the age of consent.

Doe brought suit under Title VII for sexual harassment against Oberweis Dairy, and also alleged pendent state law claims for negligent hiring, training and supervision, and assault and battery. Defendant filed a motion for summary judgment, arguing that Doe failed to exhaust her administrative remedies. Defendant further argued that in any event her claim had no merit because her relationship with Nayman, including the one act of sexual intercourse, had been voluntary and had occurred outside the workplace and because Nayman’s conduct had not been sufficiently offensive to constitute sexual harassment.

Accordingly, the district court granted the Defendant summary judgment.⁸ In analyzing whether Plaintiff’s claim was sexually hostile on a substantive basis, the district court held that the Plaintiff welcomed Nayman’s advances.⁹ In reaching this determination, the district court found that Plaintiff voluntarily visited Nayman’s apartment, asked Nayman to put on a condom, and interacted with Nayman socially after their encounter. The district court also concluded that these actions did not involve her employment.¹⁰The district court concluded that the harassment was not severe or pervasive as “Nayman only touched Plaintiff (at work) on fifteen occasions,”¹¹ and that she found allegedly harassing remarks “flattering.” The court relinquished jurisdiction of Plaintiff’s state law claims.

The Seventh Circuit Opinion

In reviewing the district court opinion, the Court noted that no forcible rape occurred; rather, based upon the Illinois criminal code, Nayman was guilty of statutory rape. The Court also noted that Nayman was nine years older than Doe when they had sex. In determining whether Doe could consent to the conduct for purposes of Title VII, the Court reasoned that, “the age of consent fixed by a state represents a legislative judgment about the maturity of girls in matters of sex.”¹² The Court found that there were several important rationale in not second guessing a state legislature: 1) it would avoid reclassifying consensual sexual conduct that the state had determined was nonconsensual; 2) employment discrimination litigation would be simplified, and 3) it would avoid difficult inquiries into maturity that legislatures determine for public benefits.¹³The Court held that federal courts, “rather than deciding whether a particular Title VII minor Plaintiff was capable of “welcoming” the sexual advances of an older man, should defer to the judgment of average maturity in sexual matters that is reflected in the age of consent in the state in which the plaintiff is employed. That age of consent should thus be the rule of decision in Title VII cases.”¹⁴

The Court recognized one inherent difficulty in this approach – lack of uniformity due to the varying state law statutes governing consent. Though most state statutes defining consent are within a fairly narrow band, a minor Plaintiff may avail herself of the protections of Title VII, for instance, in Illinois, while the same minor Plaintiff in another state would not be protected. The Court observed that the other alternatives were unworkable – having the federal courts specify an age of consent, or determine consent in each and every case. The Court reasoned that deferring to the states made more sense not only to avoid arbitrary decisions, but it also reflected the differences among the states in determining the maturity of teenagers in sexual matters.¹⁵Thus, the Court concluded, a Defendant cannot as a matter of law raise the defense of welcomeness in a Title VII sexual harassment suit by a minor Plaintiff when the conduct alleged to constitute sexual harassment occurred.¹⁶

The Court was to quick to caution, however, that the minor Plaintiff’s conduct was not per se inadmissible; rather, it may be relevant to the issue of damages. Analogizing the case to a tort claim with principles of comparative fault,¹⁷ the Court held that the employer should be permitted to put Nayman’s conduct in perspective. As the Court noted, “if Doe was sneaking around her mother’s – and her employer’s – back and thus facilitating Nayman’s behavior, the employer may be able to show that the harm she suffered was caused by its violation of Title VII, rather than by Nayman, was minimal.”¹⁸Thus, according to the Court, for purposes of damages only, the jury should be able to sift through the difference between the employer’s causal contribution to the statutory rape of a 16-year-old-siren, compared to a 12 year old child.

The other important observation that the Court made was that the sexual act need not take place in the workplace – it is sufficient if the act has consequences there.¹⁹The only caveat to that principal is that the harassment must begin and grow in the workplace.²⁰ Thus, according to the Court, had the Plaintiff met Nayman on the last day of her employment, and the relationship later culminated in sexual intercourse, the connection to the workplace would be too attenuated to constitute sexual harassment.²¹But as the Court remarked, the relationship in the case at bar began with flirtatious talk and erotic touching in the workplace and continued for nine months before the Plaintiff and Nayman had sex. The Plaintiff continued to work under Nayman for two weeks following the statutory rape. The Court concluded that since Plaintiff could not consent to have sex with Nayman as a matter of law, Plaintiff was subjected to nonconsensual sex by a supervisor during, as well as arising from, the employment relation.²² Accordingly, the case was sufficient to withstand a motion for summary judgment.

The Court then analyzed the facts under Burlington Industries v. Ellerth,²³ as to whether the employer could be held liable for Nayman’s actions. If the harasser was a supervisor the employer would be held strictly liable. If, on the other hand, Nayman would be considered a coworker, the employer is liable only if it failed to have and enforce a reasonable policy for preventing harassment, or in short, only if it was negligent in failing to protect the plaintiff from predatory coworkers.²⁴ The Court noted that in this case, it was a jury question as to whether Nayman was a supervisor. Nayman had supervisory responsibility in that he could direct the scoopers, and could also discipline employees, but he had no authority to fire them.²⁵Thus, the district court erred when it granted summary judgment in favor of the employer.²⁶

Practice Pointers In Light of Doe

Following the Seventh Circuit’s decision in Doe, Plaintiff’s attorneys representing minors have a powerful weapon against employers. If the minor Plaintiff can establish that the alleged harassment was severe and pervasive, and that the harasser was a supervisor, Plaintiff can establish strict liability for the harassment even if she consented. Depending upon the facts of the case, minor Plaintiffs may be able to bring a motion for partial summary judgment on liability. If the case proceeds to trial, Plaintiff may try moving in limine to exclude any evidence concerning welcomeness. While Doe teaches us that consent is not a defense and may be relevant to damages, and thus a motion in limine may be unsuccessful, Plaintiff may be able to get a jury instruction advising the jury that Plaintiff’s consent should not be considered for liability. Defense attorneys will be unable to rely upon the welcomeness defense as a matter of law, but may be able to cross examine Plaintiff at trial to reduce Plaintiff’s damages. Depending upon the age of the minor Plaintiff, Defense counsel will have to tread lightly as to not offend the jury.